Over the past few years I have tried a variety of approaches to incorporating behavioral legal ethics into my Legal Ethics and Professional Responsibility class. A few years ago I assigned Carol Tavris and Eliot Aronson’s Mistakes Were Made (but Not by Me) as a supplemental text to my casebook. A few students appreciated it, but most seemed to view it as irrelevant psychobabble, and halfway through the semester I dropped the remaining readings from Tavris and Aronson. This semester I’m trying again, with a focus on the behavioral ethics and conflicts of interest.
I’ve found conflicts of interest to be the hardest part of the class to teach, or at least the part where students are most resistant. Some students, at least, seem to have a very hard time getting their minds around the idea of having to turn down or withdraw from a representation. Part of this, I think, is because of students’ fears about making a living in the current legal market. Turning down a paying client sometimes seems to be too much to ask. Cognitive biases like hyperbolic discounting, self-serving bias, or the endowment effect might themselves also play a part in students’ overvaluing of the immediate rewards of fees over the risk of disciplinary sanctions. My working hypothesis is that students’ and lawyers’ assessment of conflict of interest problems and the degree of communication required to obtain informed consent are areas where an understanding of behavioral ethics can be especially valuable. So I soldier on.
Last week I introduced conflicts of interest with the aid of the Bounded Ethicality and Fundamental Attribution Error videos from The University of Texas at Austin, McCombs School of Businss Ethics Unwrapped series.
Last night I continued the discussion of material limitation conflicts under Rule 1.7(a)(2) with a TEDTalk on Optimism Bias by Dr. Tali Sharot of University College London’s Faculty of Brain Sciences:
I wanted my students to think about flawed assessment of the risk of conflicts arising where they may not be obvious at the inception of the representation. As we worked through the problems in the casebook (Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law), I occasionally warned the students when they were viewing a situation through “big optimism glasses,” and reminded them to put their “pessimism glasses” on to think about the likely problems of joint representation of criminal co-defendants or family members. It’s too early to tell how well it worked, but I think the images of “optimism glasses” and “pessimism glasses” provided a useful tool for analysis.
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